Citation Nr: 21029567 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 10-27 678 DATE: May 13, 2021 ORDER Entitlement to a disability rating in excess of 10 percent, prior to March 12, 2010, and 40 percent thereafter, for service-connected right upper extremity radiculopathy is dismissed. FINDING OF FACT In a September 2017 final decision, the Board granted a rating of 40 percent for the Veteran's right upper extremity radiculopathy effective March 12, 2010 and continued the 10 percent rating prior to March 12, 2010. The Veteran did not file a notice of appeal for this claim within 120 days or file a new claim for an increased rating for right upper extremity radiculopathy. Thus, there remains no alleged error of law or fact over which the Board has jurisdiction regarding the right upper extremity radiculopathy disability. CONCLUSION OF LAW The criteria for dismissal of Entitlement to a disability rating in excess of 10 percent, prior to March 12, 2010, and 40 percent thereafter, for service-connected right upper extremity radiculopathy have been met. 38 U.S.C. § 7105, 7266; 38 C.F.R. § 19.55, 20.302, 20.1100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1976 through August 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 2009 and August 2015 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to a disability rating in excess of 10 percent, prior to March 12, 2010, and 40 percent thereafter, for service-connected right upper extremity radiculopathy In February 2009, the Veteran submitted a claim for service connection for a cervical spine disability. This claim was granted by the RO in a June 2009 rating decision. The Veteran appealed that decision in an informal notice of disagreement in February 2010. In May 2010, the RO noted there were possible radicular symptoms reflected on the April 2009 neurological examination and requested an opinion from an examiner on whether the Veteran suffers from cervical IVDS with chronic and permanent nerve root involvement of either or both upper extremities. A September 2010 addendum opinion from the examiner indicated that the Veteran's symptoms reflected age-related diminished reflex responses as there was no nerve root involvement. In August 2015 the RO granted service-connection for the Veteran's right upper extremity radiculopathy with an evaluation of 10 percent effective February 23, 2009. In October 2015, the issue of a rating in excess of 10 percent for the Veteran's right upper extremity radiculopathy was certified to the Board. In a July 2016 decision, the Board remanded the issues of an increased rating for a cervical spine disability and increased rating for right upper extremity radiculopathy for further development. The Veteran underwent an updated VA examination in March 2017. In September 2017, the Board resolved the appeal and granted an evaluation of 40 percent disability for the Veteran's right upper extremity radiculopathy effective March 12, 2010 and continued the 10 percent evaluation for the period prior to March 12, 2010. With few exceptions, Board decisions are final when issued. 38 C.F.R. § 20.1100. The September 2017 Board decision was not appealed within 120 days and therefore became final. As noted in Cook v. Principi, "principles of finality and res judicata apply to agency decisions that have not been appealed and have become final." Cook v. Principi, 318 F.3d 1334, 1336 (2002). In DiCarlo v. Nicholson, 20 Vet. App. 52, 55-56 (2006), the Court explained the concept of res judicata as follows: As noted above, in September 2017, the Board resolved the appeals for an increased rating for right upper extremity radiculopathy. The Board notified the Veteran of those decisions, as well as his right to appeal to the United States Court of Appeals for Veteran's Claims (Court). However, he did not file an appeal with the Court. Therefore, the Board's decisions became final. 38 C.F.R. § 20.1100. There is no current appeal pending for Board consideration as to an increased rating for right upper extremity radiculopathy. The Board acknowledges that in January 2020 the Board remanded this issue for further development and in March 2021, the Board remanded this issue for issuance a Statement of the Case (SOC), which was issued in March 2021. Therefore, as the September 2017 Board decision is final, and no subsequent, valid notice of disagreement alleging any error of fact or law has been filed, the Board has no jurisdiction over the issue of entitlement to a disability rating in excess of 10 percent, prior to March 12, 2010, and 40 percent thereafter, for service- connected right upper extremity radiculopathy, and the claim is dismissed. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.D. Taylor, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.